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 Abstract

Excerpted From: Kallie S. Klein and Susan R. Klein, A Racially Biased Obstacle Course: Apprendi Transformed the Federal Sentencing Guidelines into a Series of Judicial Obstacles; Can Shame Reduce the Racial Disparities?, 99 North Carolina Law Review 1391 (June, 2021) (178 Footnotes) (Full Document)

 

SusanKline

 Like many good decisions, Apprendi v. New Jersey  had unintended negative collateral consequences, specifically regarding federal sentencing. But as we note in Part I, Apprendi was rightly decided. It seems as clear to both of us now, as it was to one of us twenty years ago,  that only a jury can find a fact that requires a judge to sentence an offender above the legislatively enacted statutory maximum penalty contained in the penal code.  The unnecessary four opinions within the 5-4 decision in United States v. Booker (merits majority, merits dissent, remedial majority, and remedial dissent) took the perfectly sound opinion in Apprendi and used it to topple the Federal Sentencing  Guidelines (“Guidelines”), in addition to all mandatory state guidelines.  In an attempt to appease Justice Breyer and uphold some measure of the Guidelines, the Booker Court instead severely damaged both of the primary goals of those Guidelines: mandating determinate and transparent sentencing that each offender's attorney could calculate from the Sentencing Manual  and eliminating unwarranted disparities in sentencing--that is, sentencing based upon an irrelevant factor, such as geography, race, gender, or ethnicity. The Supreme Court's attempt to salvage the Guidelines has instead transformed them into a series of bizarre obstacles for both the U.S. Probation and Pretrial Services System (“Probation Department”) and judges. On one hand, the Probation Department interviews the defendant and their friends and family, and investigates claims regarding the offense and the offender, in order to determine which Guidelines mitigators and aggravators the defendant will have added to their base offense level. On the other, trial court judges must expend time and effort holding a sentencing hearing and correctly calculating a Guidelines-based sentence just to ignore it. Appellate court judges must then check all calculations as part of procedural review before making essentially standardless decisions on the substantive reasonableness of the sentencing decision.Like many good decisions, Apprendi v. New Jersey  had unintended negative collateral consequences, specifically regarding federal sentencing.

But as we note in Part I, Apprendi was rightly decided. It seems as clear to both of us now, as it was to one of us twenty years ago,  that only a jury can find a fact that requires a judge to sentence an offender above the legislatively enacted statutory maximum penalty contained in the penal code.  The unnecessary four opinions within the 5-4 decision in United States v. Booker (merits majority, merits dissent, remedial majority, and remedial dissent) took the perfectly sound opinion in Apprendi and used it to topple the Federal Sentencing  Guidelines (“Guidelines”), in addition to all mandatory state guidelines.  In an attempt to appease Justice Breyer and uphold some measure of the Guidelines, the Booker Court instead severely damaged both of the primary goals of those Guidelines: mandating determinate and transparent sentencing that each offender's attorney could calculate from the Sentencing Manual  and eliminating unwarranted disparities in sentencing--that is, sentencing based upon an irrelevant factor, such as geography, race, gender, or ethnicity. The Supreme Court's attempt to salvage the Guidelines has instead transformed them into a series of bizarre obstacles for both the U.S. Probation and Pretrial Services System (“Probation Department”) and judges. On one hand, the Probation Department interviews the defendant and their friends and family, and investigates claims regarding the offense and the offender, in order to determine which Guidelines mitigators and aggravators the defendant will have added to their base offense level. On the other, trial court judges must expend time and effort holding a sentencing hearing and correctly calculating a Guidelines-based sentence just to ignore it. Appellate court judges must then check all calculations as part of procedural review before making essentially standardless decisions on the substantive reasonableness of the sentencing decision.

We discuss in Part II the U.S. Sentencing Commission (“the Commission”) Reports, which established that as the Guidelines became more advisory, racial disparity in sentencing increased. We do not blame judges alone for this disparity--it may be that federal prosecutors, mandatory minimum penalties, or the Presentence Reports (“PSRs”) are equally at fault.  Instead, we identify judges as the actors with the greatest ability to overcome the disparity and therefore place the pressure on them. Sentencing algorithms, like those currently in use to determine bail, are not the answer, as they would simply  reproduce this bias.  Accordingly, we propose a method to control the increasing and unwarranted racial disparity in sentencing. This method would utilize the Sentencing Commission to maintain and publish data on racial disparities in sentencing for each district and circuit.  This proposal is carefully targeted to avoid stigmatization by refusing to name individual judges and by releasing data in waves to provide the necessary time for reform. Perhaps this information, and the shame accompanying it, could accomplish the goal of equality in sentencing that was surrendered when the Supreme Court turned the mandatory Guidelines into a judicial obstacle course.

[. . .]

Now, over twenty years since Apprendi, judges can only increase a sentence's length beyond a statutory maximum based on a fact found by a jury  beyond a reasonable doubt. The Booker Court, in attempting to be consistent with the Apprendi principle while still maintaining the ubiquitous use of the Guidelines in sentencing, created ample red tape for courts, attorneys, and the U.S. Probation Department. However, the obstacles were especially aimed at judges. By creating these obstacles, the Court undermined the lofty goals behind the Guidelines' creation: eliminating racial, gender, and ethnic gaps persistent in sentencing and creating a set of standards from which to objectively review the reasonableness of a sentence.
Though it often publishes one of the consequences of Booker--how closely the Guidelines are still being followed--the Commission also publishes many informational reports and amends the Guidelines annually. As analyzed in Part II of this Essay, the Commission generated three Reports devoted to various aspects of Booker in 2010, 2012, and 2017.  The biggest takeaway is that as the Guidelines became more advisory, racial disparity in sentences increased.  An increase of discretion on the judges' part in sentencing is one explanation for such disparities, but plenty of discretion and blame likely also falls at the feet of prosecutors, law enforcement officials, probation officers who write the PSRs, overworked defense attorneys, and other actors involved in maintaining the court system.  However, this proposal is not about blame. It is about empowering judges to resolve disparities in sentencing because they have the final word on sentencing length, regardless of what the Guidelines or the PSR predict, or even what the prosecutor charged (as the First Step Act of 2018  empowers a judge to sentence below any mandatory minimum). 

With great discretion comes great responsibility. Judges must hold themselves accountable and acknowledge how unconscious biases can affect the life-altering decisions they make. By collecting more specific data on which districts and circuits have the biggest racial gaps in sentencing, society can target those courts for reform without targeting specific judges for shaming. While it may be beneficial in some ways to publish data of the racial sentencing disparities of specific judges to righteously shame those with poor marks, as similar shaming has been shown to affect judges' decisions in other instances,  this Essay's proposal considers that stigmatization may have drastic effects. However, those effects can be mitigated by not publishing sentencing disparity numbers of individual judges, only collecting numbers by district or circuit, and then releasing that data over designated periods of time to create temporal  goals. Unless the Supreme Court decides to change its stance on Booker, the publication and use of racial-disparity-in-sentencing data may be the most effective way to regain the consistency-seeking intent behind the original Guidelines.


J.D., Yale Law School, 2021, Judicial Law Clerk, Honorable Diana Saldana, Southern District of Texas, 2021-2022.

Alice McKean Young Regents Chair in Law, the University of Texas School of Law.


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